Paramount Pictures Corporation v. ReplayTV, Inc., Joint Stipulation ...

12345678910111213141516171819202122232425262728are less than 5000 Replay TV 4000 owners at present. A single survey (rather thanmultiple surveys by both sides) would minimize the intrusion and risk of alienationby multiple inquiries of this user-base. 51/Amazingly, unlike their predecessors in Sony, these Plaintiffs do resist theinvitation. They cavil that surveys are unreliable, and that ReplayTV owners willsomehow get wind of it and tailor their responses. Given the indisputable factsregarding the unavailability of electronic data, the impropriety and cost of creatingand then collecting it as Plaintiffs wish, Plaintiffs’ opposition to a survey must beseen as pretext. It apparently is not enough for Plaintiffs to sneak into everyReplayTV owner’ s home electronically and create new data, they want to harassthem face-to-face. Judge Ferguson was right. That’ s no way to behave. The Courtshould order the joint survey as Defendants propose.Conversely, Plaintiffs’ request for an order precluding Defendants fromcontacting Defendants’ own customers is utterly unprecedented andunsupportable. 52/There are obvious and compelling reasons not to allow Plaintiffsto identify and interrogate all of Defendants’ customers, both to protect thecustomers’ privacy and Defendants’ goodwill. Defendants’ contact with their owncustomers is in no way a reciprocal proposition. If Defendants find that a particularcustomer may actually be a likely witness, Defendants have a duty to disclose thatperson’ s identity under Rule 26(a)(1)(A), and will do so in a manner to permitAlternatively, if Plaintiffs want to conduct their own survey, Defendants haveoffered to contact their user base, advise users of the request, and disclose toPlaintiffs the identities of those users who are willing to opt-in to disclosure of theiridentifying information. However, only the techniques of a joint survey or avolunteer survey can adequately protect Defendants’ users from harassment andintimidation by Plaintiffs.52/Plaintiffs cite no case law to compel turning over the entire list of purchasersof consumer products. Nor have Plaintiffs cited a single case for the propositionthat a seller of consumer products can be precluded, in discovery, from contactingits customers. The cases cited stand for the proposition that failing to turnoverinformation in sufficient time for it to be rebutted can result in preclusion orders attrial.51/66